The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER DENYING MOTION TO DISMISS INDICTMENT FOR OUTRAGEOUS GOVERNMENT CONDUCT REGINALD
Defendants have filed a motion to dismiss the indictment for outrageous government conduct. For the reasons discussed below, Defendants' motion is DENIED.
The precise facts of this case are not entirely clear. The facts set forth in this section are facts gleaned by the Court from oral argument of counsel and the parties' papers.
In or about July, 2010, a source of information working with the confidential informant ("CI") in this case made initial contact with defendant Matson and inquired whether Matson was aware of someone who would be interested in a home-invasion robbery. The source of information then set up a meeting with Matson and the CI.
On July 27, 2010, defendant Matson met with the CI, and they discussed Matson's potential involvement in a home invasion style robbery of a drug stash house. Matson mentioned that his cousin would come along and would bring a "bang." Matson and the CI agreed to set up a meeting the following day with the CI's friend (an ATF undercover agent ("UC") posing as a disgruntled drug courier).
On July 28, 2010, Matson met with both the CI and UC and they discussed some details of how the robbery would take place. Matson requested that they meet again later in the day so his cousin could be briefed about the robbery. At the subsequent meeting, Matson as well as Wilson met with the CI and UC. The UC told Matson and Wison that on Friday, July 30, he would be notified regarding the location of the stash house where he was to pick up 6 to 7 kilograms of cocaine. The UC also explained that in the past, there had always been two guards, one of whom was armed, protecting the cocaine, and that there was usually around 40-42 additional kilograms of cocaine at the location. It was agreed that Wilson and Matson would perform the robbery with a third person and that the three of them would meet with the CI and UC one more time on July 30.
On July 30, 2010, Wilson, Matson, and Lewis met with the CI and UC, and details of the robbery were discussed. At the end of the meeting, the three defendants were arrested. A search of the vehicle they arrived in resulted in the seizure of a .40 semi-automatic pistol, a 9mm semi-automatic pistol, and two loaded magazines. Also discovered in the trunk of the car were multiple pairs of baseball batting gloves, a ski mask, and a "Friday the 13th" mask.
On August 4, 2010, a grand jury returned an indictment charging Defendants with knowingly and intentionally conspiring to possess with the intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. On January 11, 2012, the grand jury returned a Superseding Indictment adding counts for conspiracy to affect commerce by robbery and extortion (18 U.S.C. § 1951(a)), possession of a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)(1)(A)(i)), aiding and abetting (18 U.S.C. § 2), felon in possession of a firearm and ammunition (18 U.S.C. §§ 922(g)(1) and 924(a)(2)), and criminal forfeiture (18 U.S.C. §§ 924(d), 281(a)(1)(C), and 28 U.S.C. § 2461(c)).
Defendants have filed a motion to dismiss the indictment on the ground of outrageous government conduct. Defendants contend that their due process rights were violated by government overreaching. According to Defendants, the government engineered the criminal scheme -- creating the fiction of the stash house, cocaine, and disgruntled courier -- and ensnared Defendants, who were not already involved in any criminal activity, into participating in the fabricated enterprise. For the reasons discussed below, Defendants' motion is DENIED.*fn1
The Ninth Circuit explains that "outrageous government conduct" is a claim that "government conduct in securing an indictment was so shocking to due process values that the indictment must be dismissed." United States v. Holler, 411 F.3d 1061, 1065 (9th Cir. 2005) (quoting United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir. 1995)). To meet this "high standard," the governmental conduct "must be so grossly shocking and so outrageous as to violate the universal sense of justice." Id. at 1066 (quoting United States v. BarreraMoreno, 951 F.2d 1089, 1092 (9th Cir. 1991)).
In addition to cases of extreme police brutality, law enforcement conduct becomes constitutionally unacceptable "where government agents engineer and direct the criminal enterprise from start to finish" or when "governmental conduct constitutes in effect, the generation by police of new crimes merely for the sake of pressing criminal charges against the defendant." United States v. Bogart, 783 F.2d 1428, 1436 (9th Cir. 1986) (internal quotation marks and citation omitted), vacated in part on rehearing by United States v. Wingender, 790 F.2d 802 (9th Cir. 1986). In Greene v. United States, 454 F.2d 783 (9th Cir. 1971), the only Ninth Circuit case where the outrageous government conduct defense has been successfully raised, the Ninth Circuit reversed conspiracy and bootlegging convictions due to the extent of the government's involvement in creating and maintaining the criminal operations. The undercover agent approached defendants after their prior arrest on bootlegging charges, provided materials for the still, found an operator and location for the still, and supplied sugar at wholesale prices. The agent was also the still's sole customer. The government's involvement lasted over two-and-a-half years. In reversing the convictions, the Ninth Circuit reasoned:
We do not believe the Government may involve itself so directly and continuously over such a long period of time in the creation and maintenance of criminal operations, and yet prosecute its collaborators. As pointed out in Sherman v. United States, supra, 356 U.S. at 372, 78 S.Ct. at 821, a certain amount of stealth and strategy "are necessary weapons in the arsenal of the police officer." But, although this is not an entrapment case, when the Government permits itself to become enmeshed in criminal activity, from beginning to end, to the extent which appears here, the same underlying objections which render entrapment repugnant to American criminal justice are operative. Under these circumstances, the Government's conduct rises to a level of "creative activity" ...